EVENTS

The safety of zeroing out

The Louisiana House of Representatives has overwhelmingly approved new safety regulations requiring that abortion doctors have admitting privileges at nearby hospitals, rules which could lead most abortion clinics in the state to close.

“We are thrilled that the Louisiana House of Representatives overwhelming passed H.B. 388 to protect the health and safety of women,” Benjamin Clapper, executive director of Louisiana Right to Life, said March 31.

The bill requires that abortion doctors have admitting privileges at a hospital within 30 miles of their clinic.

In addition, it clarifies that informed consent protections also apply to abortions procured with the RU-486 pill. Doctors who perform more than five abortions per year must also maintain proper licensing.

Lots of new obstacles to abortion; lots of women forced to remain pregnant against their will. Triumph.

The bill drew opposition from abortion clinics and several abortion advocacy groups.

Planned Parenthood Gulf Coast’s Louisiana director Melissa Flournoy predicted that at least three of the five abortion clinics in Louisiana could close if the bill becomes law, Reuters reports. This would leave two abortion clinics in the area of Shreveport, La.

In Louisiana abortion will be made “safer” by being made impossible to get for most women in the state.

At least six other states have considered laws requiring admitting privileges at hospitals.

On March 27, a federal appeals court upheld safety provisions of a Texas law that requires abortionists to have admitting privileges at nearby hospitals. The provisions have the same language as the Louisiana bill.

The Texas law has contributed to the closure of about one-third of that state’s abortion clinics, leaving 19 remaining open, Reuters says.

How does it pass the “rational basis” test, when the supposed justification is actually false?

maddog1129, have you seen the Fifth Circuit decision about the Texas bill?

As explained in the opinion authored by Judge Edith Jones, when analyzing the constitutionality of an abortion restriction, courts must presume the law in question is valid and vote to uphold that law so long as “any conceivable rationale” exists for the law’s enactment. Furthermore, the Fifth Circuit explained, the state doesn’t even really have to support with evidence its claim that law will advance the lawmaker’s stated outcome—in this case advancing maternal health. So long as lawmakers claim some basis in advancing maternal health, the Fifth Circuit believes that is, and will always be, enough to find an abortion regulation constitutional. “Because the determination does not lend itself to an evidentiary inquiry in court, the state is not required to ‘prove’ that the objective of the law would be fulfilled,” the court wrote, adding that “a law based on rational speculation unsupported by evidence or empirical data satisfies this standard of review.”

Yes, people can *say* the legislation has X purpose, but if the evidence actually shows that the stated rationale is pretextual and false, and has the actual intended — and improper purpose — of burdening protected constitutional rights out of existence, how can the purported “rational basis” be allowed to stand?

maddog1129: that’s how the Fifth Circuit justified upholding Texas’s requirement that abortion providers have admitting privileges at a hospital *within 30 miles*. They have ALREADY ignored evidence that it’s a burden. This is the same Fifth Circuit judge that said having no abortion clinic within 150 miles – waiting periods, mandatory ultrasounds, and all – was no burden because women should just drive faster.

But this isn’t how Judge Edith Jones of the 5th Circuit sees it. During a Monday hearing on the law, lawyers for the Center for Reproductive Rights explained that women in Rio Grande Valley must travel 300 miles round-trip to the nearest clinic in order to access basic medical care, to which Jones replied, “Do you know how long that takes in Texas at 75 miles an hour? This is a peculiarly flat and not congested highway.”

Consider this twisted logic: The Fifth Circuit concludes that there’s a rational basis for the geographic requirement that hospital admitting privileges be within 30 miles of where a physician performs abortions, based on speculation by the state, supported by the testimony of one physician who does not perform abortions or work at a facility that performs abortions, that it will facilitate patient care. But according to the Fifth Circuit, even though the effect of the law will be to close clinics and force some patients to drive hundreds of miles to access care, 300 miles is not too far to drive for a woman needing care, and therefore the effect of the law is not a substantial obstacle on her right to choose an abortion.

In US constitutional analysis, “false” and “pretextual” are very different claims. If law passed in 1969 banned kids from the classroom if diagnosed with Autism with the authors of the bill freaking out over “regular kids” being killed or injured by “mindless freaks”, well, there wasn’t good data back then about risks of injury to TAB kids in an integrated classroom. The bills authors could have been applying reason in an environment of uncertain data.

Ability not being a scrutinized system of classification, constitutionally this would be analyzed according to rational basis (though there would also, undoubtedly, be a statutory claim under the ADA). Absent vindication under the ADA, plaintiff is likely out of luck.

The analysis changes not at all if a pretext was at play, and evidence that use of a pretext is a logical inference helps little. The mere existence of 1 horrible incident that got lots of local press resulting in parents calling the school board **on its own** wouldn’t change analysis or outcome. If you could prove pretextual action, that the legislators did not in fact believe their own rationale, then their rationale couldn’t satisfy Rational Basis. The concealed action itself would be addressed, however, and just because it was covert doesn’t mean it was unconstitutional (it may simply be constitutional but not politically astute, and thus avoided to make campaigning easier, as a for instance).

But the important part here is that in rational basis, the court has no onus for determining the real motivation for passing a law. Pretextual or not, the public story is the only story the court considers. This changes only if plaintiff can fully demonstrate at trial that the real motive was something else and that that previously hidden motive affects the constitutional analysis.

It is only at higher levels of scrutiny that this changes. In fact it changes most famously…and most notoriously…in so-called “intermediate scrutiny”. IS is more than Rational Basis, but less than Strict Scrutiny. Very often (see the VMI case and Bader-Ginsberg’s opinion) the willingness to scrutinize lawmakers’ statements contextually is a large part of the distinction between RB and IS.